Apa-apa rayuan sedemikian hendaklah dibuat selaras dengan peruntukan-peruntukan mana-mana undang-undang bertulis buat masa itu berkuatkuasa berhubungan dengan prosedur sivil; dan Mahkamah hendaklah membuat apa-apa perintah atasnya sepertimana ia memikirkan adil. 16 [19] It is undisputable that the validation and approval of a bill issued to the Land Administrator is a decision which would bind the Plaintiff as a chargee and is also a duty under section 268(1)(b) of the NLC which reads: “(b) secondly, in the payment of the expenses (as certified) by the Registrar of the Court or Land Administrator, as the case may be incurred in connection with the making and carrying into effect, of the order for sale.” (emphasis given) [20] This Court is fully aware and agrees that the auction which is the core of the present proceeding is an auction conducted by the land administrator for mukim lands/Land Office title and is not an auction conducted by the High Court. Thus, the Auction Sales Enactment F.M.S CAP 91 (No. 2 of 1929) and Auction Sales Rules (Selangor, Negeri Sembilan and Pahang) and Surat Mahkamah Tinggi Malaya bertarikh 29/8/1995 which informs that the rate of auctioneer’s commission effective on 01/01/1995 and kaedah 43(3) kaedah-kaedah Tanah Wilayah Persekutuan Kuala Lumpur 1995 are not applicable. 17 [21] With the inapplicability of the scale commission for public auctions at the High Court, there are no scales or guidelines issued by the Land Office of Selangor to be made as guidance to the Land Administrators of Selangor in relation to the rate of auctioneer’s fees/commission which would aid the Land Administrator to conduct the public auction. [22] In this situation, how then would the rate of commission be determined? In the absence of any guideline or directive, thus the determination of the proper rate of commission to the auctioneer shall be based on the discretion of the Land Administrator. In other words, the Land Administrator must examine whether or not the rate stated in the bill is reasonable or otherwise. [23] It is a fundamental principle of law that when a matter is to be determined or decided by a discretionary power, the discretionary power must be exercised justly and reasonably on the principles of fairness. The Land Administrator in the present case must give consideration to all relevant factors in determining the reasonable rate that could be paid to the auctioneer while being able to give the 18 right direction to his own self in ensuring that the rate determined is just and reasonable. In other words, the Land Administrator must ask himself the right question and his decision must be accorded to the justice of the case. [24] In the present case, at exhibit “EE-4”, Enclosure 2 the endorsement and approval of the Land Administrator was made vide a rubber stamp which completely does not reflect that he has scrutinized and considered whether or not the commission claimed is reasonable and just. Similarly in his Affidavit in Reply, there is only a mere averment that he agreed to the 2% rate after he had scrutinized the bill. What were the matters or factors which were scrutinized which led to the decision that the rate of 2% was reasonable? There is no justification afforded by the Land Administrator in allowing the 2% rate. Thus, this Court is in agreement with the Plaintiff’s learned counsel that considering that Land Administrator’s decision without justification, scrutiny and consideration of the relevant factors in determining the proper rate, an inescapable conclusion may be drawn that the decision to validate and approve the 2% rate was an arbitrary, 19 baseless decision not in line with the real principle of the law, which is justice for all parties. [25] Clearly, the issue before this Court is whether the Defendant here in exercising his discretionary power in allowing the auctioneer to be paid a commission of RM44,000.00 i.e at the rate of 2% of the sale price has exercised the power vested upon him reasonably and justly. In Ratnam v Cumarasamy & Allor [1965] 1 MLJ 228, the Privy Council held that it will not interfere with the discretion exercised by a lower court unless it is clearly satisfied that the discretion had been exercised on a wrong principle. Similarly, the Federal Court in Vasudevan v T Damodaran & Anor [1981] 2 MLJ 150, held that an exercise of discretion ought not to be interfered with unless there is satisfactory evidence that the judge was wrong because of the presumption that the judge has rightly exercised his discretion. [26] In this case, the decision of the Defendant was clearly against the basic and fundamental principle of exercise of discretion and thus warranted this Court intervention. Under these circumtances, this 20 Court as an appellate and the court of justice has to step in to remedy the situation. [27] Therefore, based on the above grounds, the decision of the Land Administrator to validate and approve/allow the auctioneer’s commission at 2% of the sale price is unsustainable and must be set aside by this Court. [28] The Plaintiff in its Enclosure 1 had also prayed to this Court an Order that the Defendant to reaffirm the said bill in accordance with the commission applicable to public auctions conducted by the High Court whereby the maximum commission allowable is RM2000.00. [29] In relation to this, this Court stresses that the law is clear that when a statute/law has granted exclusive jurisdiction to the Land Administrator to determine the proper commission to be paid to the auctioneer and there is no law or rule made in Selangor to apply the same scale as a public auction held at the High Court, this Court cannot give a binding effect to the said scale to an auction held by the Land Administrator which is his exclusive jurisdiction. Doing so would 21 mean that this Court had usurped the jurisdiction of the Land Administrator and this cannot be allowed. [30] What the Court may strongly suggest here is that, until a rule is made for a scale of auctioneer’s commission for auctions held by Land Administrators in Selangor, in view of overcoming this problem of the arbitrary or mechanical determination, and for the sake of uniformity, all Land Administrators should consider the scale commission of public auctions at the High Court as a guideline in determining the appropriate rate of auctioneer’s commission. In the event that any Land Administrator refuses to follow this scale, that Land Administrator must exercise his discretion justly and reasonably based on strong grounds while affording justifications to support his decision. Such decisions outside of the scale commission shall be opened to the scrutiny of the High Court as an Appellate Court. [31] Considering the aforementioned grounds, this Court shall return/ remit the present case to the Land Office of Gombak for the determination of the rate of commission that should be paid to the JAR Auctioneers. 22 [32] Regarding the applicability of the protection under Section 22 of the NLC, it is this Court’s finding that the Defendant cannot seek refuge behind this provision as the Defendant’s conduct is not a conduct of the Defendant on his own personal capacity in his acts or ommissions in exercising his obligations under the NLC but instead is a conduct under the office of the Land Office which had prejudiced and aggrieved the Plaintiff. [33] No cost on full indemnity shall be granted to the Plaintiff as per the Plaintiff’s prayer. The Plaintiff is only entitled to be granted costs on the proceedings to the sum of RM5,000.00. ..................................................... (DATUK AZIMAH BINTI OMAR) Judge High Court Shah Alam Selangor Darul Ehsan Dated the 14th March of 2017 23 For the Plaintiff - Messrs Satish Alli & Associates Mr Satish V Nair For the Defendant - Penasihat Undang-Undang Negeri Selangor Tuan Khairul Nizam bin Mohd Kamal